Imágenes de páginas

the teacher possesses the necessary qualifica- | by him to appellee. In Union School District tions, the issuing of the certificate and the v. Sterricker, 86 Ill. 595, it was held that a proper dating of the certificate are merely school certificate of this kind "is in the ministerial acts, which he can be required to nature of a commission, and cannot be atperform by the writ of mandamus. The tacked collaterally.” In that case it was prayer of the petition in the case at bar is, held that such a certificate cannot be innot that the appellant as county superin validated by proof that no personal examinatendent of schools shall issue a certificate to tion of the teacher was had, or that he did the appellee certifying that he possesses the not possess the qualifications mentioned in necessary qualifications to teach, but the the certificate. Appellant cannot now be alprayer is merely that he correct the date of lowed in this collateral attack to contradict a certificate which he had already issued. and invalidate his own certificate by setting This he can be compelled by the writ of up, as appears to be done here, that the cermandamus to do, as he is thus required to tificate was issued without due examination. perform merely a ministerial act.

It appears from the proof that in 1899 the apIt is not denied that appellant issued to the pellee did submit to a written examination appellee a certificate, dated July 2, 1900, touching his qualifications, and it also apwhich was a first-grade certificate, and cer pears that the appellant, after such written tified that appellee possessed the necessary examination, did not thereafter require an statutory qualifications to teach. That cer additional examination. It cannot be said tificate was valid for two years, under sec that the certificate, issued in September, 1902, tion 3 of article 7, as above quoted. The two and dated back as of July, 1901, was a mere years expired in July or September, 1902. It renewal of a former certificate. The ceris not denied that in the summer or fall of tificate could only be renewed in the manner 1902 the appellee applied to the appellant for pointed out in the statute. Section 3 of ara new certificate, and that such certificate ticle 7, as above quoted, provides that "the was issued to him. Appellant, however, in county superintendent may, in his option, restead of dating the certificate in September new said certificates at their expiration by of 1902, when it was issued, dated it back to his indorsement thereon.” The mode. proJuly 2, 1901. The statute provides that the | vided by the statute for the renewal of the first-grade certificate shall be valid for two certificate is by indorsement thereon, and in years. It entitles the teacher to teach in a the case at bar there was no such Indorsecommon school for two years. The period of ment renewing appellee's certificate; but a two years begins with the date of the cer new certificate was issued to him, reciting tificate. This is apparent from the fact that that it was of the first grade, and that apthe form of the certificate, given by the pellee possessed the necessary qualifications statute, provides that it shall be valid for the to teach. requisite period “from the date hereof." The We concur in what is said upon this subdate of the certificate, therefore, is a material ject by the Appellate Court in their opinion item, as showing the beginning of the period deciding this case, where the following views for which the teacher is entitled to exercise are expressed, to wit: "It is not controverted bis profession in the county. It makes no that appellee made application for the cerdifference what the motive or object of the tificate on September 1, 1902; that the same appellant was in dating the certificate back was granted, and, as a matter of fact, issued for one year. The statute does not authorize upon that day, and that it was dated back to any such action on his part, but evidently July 1, 1901. The action of appellant in thus contemplates that the certificate should be antedating the certificate was without legal dated as of the date of its issuance. Here it justification and unwarranted, no matter was issued in September, 1902, but was dated what his motive may have been. The cerback to the month of July, 1901. We are tificate in question being the only evidence of the opinion that the court had the power the appellee possessed or could obtain as to by writ of mandamus to compel the appellant, his right to teach, he was entitled to have it as such superintendent, to correct the date show such authority for the full term proof the certificate by changing it from 1901 to vided by the statute for a first-grade cer1902. It made a difference of one year to the tificate. By the arbitrary, unauthorized, and appellee, because, as the certificate was valid | illegal act of appellant, appellee was defor only two years, if it was properly dated prived of such evidence, and thereby renin 1901, appellee's right to teach under it dered unable to exercise his profession in would expire in 1903, whereas, if it was Sangamon county for a longer period than properly dated in 1902, his right to teach nine months from the day upon which he was would not expire until September, 1904.

declared to be qualified to teach. He thereby The certificate recites upon its face that it lost a valuable property right, to regain is of the first grade, and also recites that which the remedy by mandamus was propthe appellee possesses the necessary qualifica erly invoked. The propositions of law subtions to entitle him to a certificate of the mitted by appellant were in direct conflict first grade. The appellant is estopped from with the law governing the questions indenying these recitals in the certificate issued volved, and hence were properly refused."

We are of the opinion that the judgments | proceedings in conformity with the opinion of the lower courts are correct, and, accord of the Supreme Court, therefore the said ingly the judgment of the Appellate Court, cause," etc. Following the judgment was an affirming that of the circuit court, is affirmed. | order of sale against the lots for the amounts Judgment affirmed.

as indicated in the schedule attached to the order. The plaintiff in error did not appear

in the court below subsequent to the reversal (219 I11. 20)

of the cause, and from the order as entered GAGE V. PEOPLE ex rel. HANBERG, | he has prosecuted a writ of error, claiming County Treasurer.

that the cause was redocketed without statu(Supreme Court of Illinois. Dec. 20, 1905.) tory notice, that the redocketing order is de1. MUNICIPAL CORPORATIONS - LOCAL IM•

fective, that the court was without jurisdicPROVEMENTS - ASSESSMENT PROCEEDINGS - tion to enter the order, and that there are JUDGMENT-SUFFICIENCY.

defects in the form of the judgment and order A judgment of sale in a special assessment proceeding is defective, where it refers to an

of sale. attached schedule for the amount of the judge F. W. Becker, for plaintiff in error. Robment, and there is no dollar mark in front

ert Redfield and Frank Johnston, Jr. (Edgar of the numerals in the schedule, and nothing to show that the numerals indicate dollars and

Bronson Tolman, Corp. Counsel, of counsel), cents.


WILKIN, J. (after stating the facts). The Where notice to the adverse parties of the redocketing of a cause after remand is neces

body of the judgment and order of sale resary, the judgment should specifically show the fers to a schedule attached thereto, which is giving of such notice.

supposed to indicate the amount due upon 3. MUNICIPAL CORPORATIONS - LOCAL IM

each lot. It is insisted that this schedule is PROVEMENTS — ASSESSMENT PROCEEDINGS SIGNATURE OF JUDGMENTS.

fatally defective, for the reason that there is Under Hurd's Rev. St. 1903, p. 1541, c. 120, no word, mark, or character to show what $ 191, requiring a judgment and order of sale in the numerals appearing in the various col. special assessment proceedings to be signed by

umns stand for. In the cases of Gage v. the county judge, a judgment and order of sale, marked "0. K.," followed by the initials of the

People, 213 Ill. 347, 410, 72 N. E. 1062, 1084, county judge is insufficient.

we reversed the judgments of the county

court for the reason that the dollar mark was Error to Cook County Court; Orrin N.

omitted from in front of the numerals and Carter, Judge,

there was nothing to show what the figures Application by the people, on the relation

indicated. The judgment at bar is identical of John J. Hanberg, county treasurer, for a

with those in the cases referred to. The judgment in special assessment proceedings

dollar mark is entirely omitted, and the against Henry H. Gage. There was a judg

judgment will have to be reversed for this ment in favor of relator, and Gage brings omission. error. Reversed.

Complaint is also made that the recital in At the June term, 1903, of the county court the judgment does not sufficiently show that of Cook county, the county collector applied proper notice was given before the case was for judgment against the property of plain | redocketed. It is insisted that to sustain an tiff in error for the first and second install order of redocketing the record ought affirmaments of a special assessment levied for tively to show that due notice of the filing paving Turner avenue, in the city of Chicago. of the transcript of the remanding order was The court overruled the objections of plain given to the adverse party or his attorney, tiff in error, and judgment and order of sale and that notice should appear in the files, was entered, which was reversed by this or the order redocketing the case should recourt upon appeal. Gage v. People, 207 Ill. cite that due notice was given to the respec61, 69 N. E. 635. Subsequently a transcript | tive parties. The remanding order of this of the order reversing and remanding the court directs the county court to enter cause was filed in the county court, and an judgment in conformity with section 191 of order entered setting the case for hearing on the revenue act. It is contended that, inasThursday, March 24, 1904, at 10 o'clock a. much as the court below could do no more m. At the time set for the hearing an order than enter the judgment as directed, notice was entered which recited as follows: “It would serve no purpose and was unnecesappearing to the court that the mandate and sary. The statute seems to contemplate no. transcript of the order of the Supreme Court tice of reinstatement or remandment in all of Illinois reversing the judgment of this cases. But it is said the recitals in the judg. court heretofore entered herein as to the ment show notice. The recital did not specif. property of the objector, represented by F. | ically state that notice had been given to W. Becker, attorney, and remanding said the parties interested and was not sufficient. cause as to the property of said objector, It is also insisted that the judgment and has been filed herein for more than ten days order of sale does not comply with the relast past, and that due notice has been given quirements of the statute, for the reason that that a motion would be made by said peti- | it is not signed by the county judge. The tioner to redocket the cause, and for further letters "O. K. 0. N. 0." appear at the end of the order. The statute expressly provides John H. Chadwick, Thomas W. Roberts, that the judgment and order of sale shall be Eckhart & Moore, and P. M. Moure, for signed by the county judge. Hurd's Rev. St. plaintiffs in error. I. A. Buckingham and 1903, p. 1541, c. 120, 8 191. While we will Roy F. Hall, for defendant in error. take judicial notice of the name of the present occupant of the office of county judge of HAND, J. This was a bill in chancery Cook county, yet the initials at the end of filed in the circuit court of Douglas county the order do not comply with the require on the 11th day of September, 1902, by Sarah ments of the statute.

M. Murdock against the heirs at law of John For the errors indicated the judgment of D. Murdock, deceased, to set aside an antethe county court will be reversed, and the nuptial contract bearing date July 25, 1892, cause remanded, with leave to the attorneys

entered into between the said Sarah M. Murfor defendant in error to move the court dock and John D. Murdock; also certain for, and with directions to the county court deeds made by Jobn D. Murdock to the plaintoo enter, a judgment in conformity with sec

tiffs in error, conveying to them, in fee tion 191 of the revenue act.

simple, 875 acres of farm lands situated in Reversed and remanded, with directions.

said county (subject to a life estate reserved therein to said John D. Murdock), bearing

date shortly prior to the marriage of the said (219 III. 123)

Sarah M. Murdock and John D. Murdock, and MURDOCK et al. V. MURDOCK. for the assignment of dower in said lands. (Supreme Court of Illinois. Dec. 20, 1905.)

Answers and replications were filed, and the 1. HUSBAND AND WIFE-ANTENUPTIAL SET case was referred to the master in chancery TLEMENTS-FAIRNESS-BURDEN OF PROOF. of said county, to take the proofs and report

Where the provision in an antenuptial con his conclusion as to the law and the facts. tract for the intended wife is disproportionate

The master took the evidence and filed a re to the means of the intended husband, a presumption is raised in her favor that the ex

port recommending that the bill be dismissed ecution of the agreement was brought about by | for want of equity. The chancellor sustained a designed concealment of the amount of his

exceptions to the master's report, in so far property by the intended husband, and the

as it held the complainant was barred of husband or persons claiming through him bave the burden of showing in support of the agree

her distributive share in the personal estate ment that the intended wife, when she executed of the said John D. Murdock, deceased, but the same, had full knowledge of the nature,

overruled the same as to his findings and character, and value of the intended husband's property, or that the circumstances were such

recommendations with reference to the conthat she reasonably ought to have had such veyances of the farm lands, and entered a knowledge.

decree sustaining the deeds from John D. 2. SAME.

Murdock to the plaintiffs in error, and held An intended husband had, at the time of making an antenuptial agreement, $10,000

that the defendant in error was not entitled worth of personal property and a reserved life to dower in said farm lands, but decreed her estate in certain lands conveyed to his children to be entitled to her distributive share, as which amounted to $4,000 a year. By an ante

widow of said John D. Murdock, in his pernuptial agreement with his intended wife she released all her interests in his estate in case

sonal estate, the same as if the said anteshe survived him, except that of homestead and nuptial agreement had not been executed, widow's award, and, in addition to the home from which decree, so far as it was adverse stead and widow's award, was to receive $1,500

to their interests, the plaintiffs in error prosein cash from his estate within 60 days from the date of his death. At the time of his death | cuted an appeal to the Appellate Court for the husband had about $35,000, and the widow's the Third District, where the decree of the award was valued at $1,350. Held, that the

circuit court was affirmed, and a writ of provision for the wife was disproportionate to the value of the husband's estate.

error has been sued out from this court to 3. SAYE-KNOWLEDGE OF HUSBAND'S MEANS

the Appellate Court to review the judgment -EVIDENCE.

of that court. The fact that an intended husband and

It appears from the evidence that on the wife, between whom an antenuptial settlement was executed, had lived near to each other for

26th day of July, 1892, John D. Murdock and many years and were well acquainted, and Sarah M. Bentley were married at Murdock, that the intended husband was reputed to be a small village in Douglas County, where a man of wealth, does not show that the in

they had both resided and been intimately tended wife knew, when she executed the antenuptial settlement, the nature and value of

acquainted with each other for many years. the intended husband's property; nor was she John D. Murdock at the time of the marriage charged with such knowledge by the fact that was 76 years of age, and was a widower her son-in-law knew the financial standing of her intended husband, when he did not com

and bad six children, two sons and four municate his knowledge to her.

daughters, all adults, and who resided in

their own homes, and Sarah M. Bentley was Error to Appellate Court, Third District.

50 years of age, was a widow and had two Bill by Sarah M. Murdock against Watson

children, a son and a daughter, both of whom Murdock and others. There was a judgment were adults. John D. Murdock died intesof the Appellate Court, affirming a decree in tate in the said village on February 9, 1902. favor of complainant, and defendants bring | At the time of the marriage Mrs. Bentley error. Affirmed.

| bad personal property, consisting of wearing apparel and household goods, of the value of, the time the agreement was signed, however, not to exceed $200, and was possessed of a nothing was said in regard to the nature, dower and homestead estate in the house character, or value of Murdock's property, and lot where she lived, which had belonged and there is no evidence in this record that to her first husband, and which house and Mrs. Bentley had any knowledge of the nalot were not worth to exceed $1,000, and she ture, character, and value of Murdock's prophad no prospects of obtaining any other prop erty at the time the agreement was executed, erty, by inheritance or otherwise. At the or at any time prior to her marriage to Murtime of the engagement between John D. dock, or that Mrs. Bentley knew that MurMurdock and Mrs. Bentley, which preceded dock, in the deeds conveying the real estate their marriage some two months, Murdock to his children, had reserved a life estate to owned 875 acres of farm lands situated in bimself, except such knowledge as she may be Douglas county, worth at least $60 an acre, deemed in law to have had by reason of the and which produced an annual rental of not fact that she had resided in the same village less than $4,000. He also had personal prop in which Murdock resided for a number of erty, consisting of cattle, horses, grain, farm years prior to their marriage, was well acimplements, money, and notes and mortgages, quainted with Murdock during that time, and of at least the value of $10,000. His sons that Murdock was reputed to be a wealthy and daughters were opposed to Murdock man, and that her son-in-law, with whom she marrying Mrs. Bentley, and Mrs. Bentley ad was on friendly terms and who also lived in the vised Murdock to convey his farm lands to village, was well acquainted with Murdock bis children prior to the marriage, with a and was familiar with his financial standing. view, if possible, to reconcile said children The antenuptial agreement in question is to their marriage, and pursuant to such ad long, and need not be set out in full in this vice, a few days prior to the marriage, Mur opinion. It will, however, be found incordock, by separate deeds, conveyed all of said porated in full in the Appellate Court opinion farm lands to his sons and daughters in filed in this case. It in brief provided that substantially equal portions, reserving a life John D. Murdock released all his interests in estate to himself in said lands. About the Mrs. Bentley's estate in case he survived time Murdock executed said deeds to his her, in consideration that she released all her children he called upon his solicitor, Charles interests in his estate in case she survived W. Woolverton, who resided in Tuscola, in him, except that of homestead and widow's said county, with a view to have him pre award, in which event, in addition to said pare an antenuptial contract between himself homestead and widow's award, she was to and Mrs. Bentley, and on the 25th of July receive $1,500 in cash from his estate within Murdock and Mrs. Bentley, went to Tuscola 60 days from the date of his death. to execute the said agreement. There is no The defendant in error, in support of the direct evidence in the record that the execu decree and judgment of the lower courts, tion of an antenuptial agreement was con makes two contentions: First, that at the sidered or its terms agreed upon by and be time Mrs. Bentley signed said antenuptial tween Murdock and Mrs. Bentley until they agreement she did not understand its legal met at the law office of Woolverton on July effect, but supposed that by the terms there25, 1892. Woolverton died in 1895, and, the of, upon the death of Murdock, in addition mouths of Woolverton and Murdock being to her homestead and $1,500 in cash, she closed by death and Mrs. Murdock being an would receive one-third of his personal propincompetent witness, the only evidence as to erty remaining after the payment of his what took place at the time of the execution debts, as a widow's award; and, second, that of said antenuptial agreement is found in the provision made for her in said agreement, the testimony of J. W. Hamilton, who at | in view of the amount of Murdock's property, the time of the execution of said agreement was wholly inadequate for her support as was a clerk in the law office of Woolverton. his widow, and that, as she was not fully inHe testified that on the 25th day of July, formed by him of the nature, character, and 1892, Murdock and Mrs. Bentley came to value of his property at the time she exeWoolverton's office substantially together; cuted said agreement or prior to her marthat the agreement had been prepared by riage, it is not binding upon her, and is not Woolverton and written out by Hamilton up a bar to her distributive share of the peron the typewriter and was ready for the sig sonal estate of said Murdock, and that, in natures of the parties; that at the request of view of such inadequacy, the burden of proof Woolverton he read over to Murdock and rested upon the plaintiffs in error to show Mrs. Bentley, in the presence of Woolverton, that she executed said agreement with full the agreement, paragraph by paragraph, and knowledge of the character, nature, and value that the instrument in all its parts and its of the property which Murdock bad at the legal effect were fully explained to the con time she executed the agreement, and that tracting parties and discussed between them said plaintiffs in error failed to sustain such selves and with Woolverton, and after a dis burden of proof. cussion as to the terms and legal effect of As to the first contention, the proof shows the instrument it was executed by the con the agreement was read to Mrs. Bentley and tracting parties and they left the office. At fully explained to her at the time she signell it, and, as she is a woman of some education | The burden here was therefore upon apand of apparent intelligence, and there is pellants to prove, by satisfactory evidence, no claim she was induced to execute the that the appellee had knowledge of the charagreement by fraud or circumvention, we acter and extent of her intended husband's think if that contention was all there was property and of the provisions and effect of in the case, she ought to be held to be bound this instrument, or, at all events, that the by the terms of the agreement.

circumstances were such that she reasonably As to the second contention, as has before ought to have had such knowledge at the been said, there is no proof in this record time this instrument was executed.” that the defendant in error, at the time she The foregoing language was quoted with signed the agreement or at any time prior approval in the Achilles and Hessick Cases, to the marriage, was informed or bad any and was said to be a correct statement of knowledge wbatever as to the nature, char- the settled law of this State. This being acter, or value of Murdock's personal prop the law, the question then arises, was the erty or that he had retained a life estate in provision made for the defendant in error said farm lands, unless such knowledge is | by the agreement disproportionate to the to be imputed to her as a matter of law from estate of the intended husband at the time the facts that she lived in the same town the agreement was executed and the mar. with and was well acquainted with her in riage consummated? The intended husband tended husband, that he was reputed to be then owned and possessed, after the payment a wealthy man, and that her son-in-law, who of all debts, at least $10,000 worth of personal lived in the same village and with whom property and retained the use of all of said she was on friendly terms, was familiar with farm lands during his life, which would prohis financial condition. The rule in this duce an annual rental of at least $4,000. state is well settled that a man and woman He lived about 10 years after his marriage, who contemplate marriage may by an ante and died leaving an estate, consisting of per. nuptial contract, if there is a full knowledge sonal property, valued at about $35,000. The on the part of the intended wife of all that provision made for the wife gave her a small materially affects the agreement, settle their house in which to live, a widow's award property rights in each other's estates. Yet (which was fixed at $1,350), and provided it is held, if it appear that the provision made she was to receive $1,500 in cash within 60 for the intended wife is disproportionate to days of her husband's death. Had Murdock the means of the intended husband, a pre been possessed only of the $10,000 worth of sumption is raised in her favor that the ex personal property, it might have been argued ecution of the agreement was brought about with some force that the amount which the by a designed concealment of the amount of defendant in error, in case she survived him, his property by the intended husband, and that was to receive under the agreement was a the husband, or persons claiming through him, reasonable provision for her support in view in order to sustain the agreement, have cast of the amount of his property. Said perupon them the burden of proof to show that the sonal property did not, however, constitute intended wife, at the time she executed the all his property at the time of said marriage, agreement, bad full knowledge of the nature, but, in additon thereto, he possessed said life character, and value of the intended hus estate in the said farm lands, which, as it band's property, or that the circumstances turned out, by reason of the length of time were such that she reasonably ought to have which he lived subsequent to the marriage, had such knowledge. Achilles v. Achilles, 137 was the most valuable asset which he then III. 589, 28 N. E. 45; Taylor v. Taylor, 144 Ill. owned. The said life estate must, we think, 436, 33 N. E. 532; Achilles v. Achilles, 151 Ill. therefore be taken into consideration by the 136, 37 N. E. 693; Hessick v. Hessick, 169 Ill. court in determining the question whether 486, 48 N. E. 712; Hudnall v. Ham, 183 Ill. the provision made by Murdock for his in486, 56 N. E. 172; Yarde v. Yarde, 187 Ill. 636, tended wife was disproportionate to the 58 N. E. 600. In the Taylor Case, on page amount of bis estate at the time she executed 445 of 144 Ill., page 533 of 33 N. E., the court said agreement. From a careful considerasaid: "Parties to an antenuptial contract tion of all the evidence we are of the opinion occupy a confidential relation toward each the chancellor and the Appellate Court propother. Kline's Estate, 64 Pa. 124; Pierce v. erly held the provison made for the defendPierce, 71 N. Y. 154, 27 Am. Rep. 22; Rock ant in error was disproportionate to the afellow v. Newcomb, 57 Ill. 186. While they amount of her intended husband's property, may lawfully contract with each other where and that, owing to the fiduciary relation there is full knowledge of all that material which is presumed to exist between a woman ly affects the contract, yet, where the provi. and the man whom she is about to marry, sion secured for the intended wife is dispro the presumption obtains the defendant in portionate to the means of the intended hus error executed said agreement by reason of band, it raises the presumption of designed the fact that the nature, character, and value concealment, and throws the burden upon of the husband's property was designedly those claiming in his right to prove that there concealed from her, and properly held that was full knowledge on her part of all that the burden of proof was upon the plaintiffs materially affected the contract. . . . l in error to show that the intended wife bad

« AnteriorContinuar »